Sonia Allan

The story of baby Gammy and his surrogate mother Pattaramon Chanbua is in news headlines around the world. Gammy, born with Down syndrome and a congenital heart condition, is a twin, conceived as a result of a commercial surrogacy arrangement between an unknown Australian couple and Chanbua, a Thai national whose family was struggling to pay off debts. When it was discovered that one of the babies Chanbua was carrying had Down syndrome, she was told to abort it. She refused and went on to give birth to the twins. The Australian couple took the healthy baby, while Gammy was left behind, and although loved and cared for, Chanbua and her family were unable to meet the costs of his medical needs and care.

As newspapers around the world have published the story, it has been met with outrage. At the same time, an online campaign to raise money for Gammy’s treatment was launched to help, and compassion from hundreds of people has been displayed, with donations reaching $200,000.

Beyond this, the story also again raises concern about the practice of commercial surrogacy, and what it means for women and children around the world.

The Thai government moved swiftly to restrict surrogacy to circumstances which are not commercial, and in which the surrogate is related to the intended parents, and the intended parents must be medically infertile. People who remove children from Thailand without the approval of the Thai government will be subject to Thai anti-trafficking laws. Australia's foreign affairs department is also now engaging in consultation with Thai authorities over surrogacy issues.

The majority of nations that regulate surrogacy around the world, prohibit commercial surrogacy. However, because a minority of nations have allowed (and/or continue to allow) commercial surrogacy to occur (for example, Guatamala, Russia, the Ukraine, and some US states), brokers, lawyers, and clinics continue to encourage people wishing to have children to forum shop to "realise their dreams".

The baby Gammy case has not put an end to this – in fact, commentary from surrogacy lawyers and facilitators in Australia has emphasised their ‘concern’ that ‘hundreds’ of would-be-parents may be left unable to satisfy their longing for a family. There follows a careful suggestion that perhaps it would be better to permit commercial surrogacy in Australia – as though if it happened here exploitation, commodification or risk would not exist.

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Should we? I suggest that the answer should be a resounding ‘No’.

The law in Australia is currently clear. All states and territories prohibit commercial surrogacy arrangements. NSW, Queensland and the Australian Capital Territory also prohibit travelling to other countries to engage in such practices. The Australian government lists such prohibitions in its reports to the United Nations as forming part of our laws against the sale and trafficking of children and meeting our obligations under international law to this effect. Some people who are travelling abroad and engaging in commercial surrogacy therefore are already breaking laws.

While careful regulation of altruistic surrogacy arrangements allows for an alternative avenue to having a family, and is legal in Australia, introducing money in for-profit arrangements places women and children at risk. This is heightened in circumstances in which clinics, brokers, facilitators and lawyers stand to profit significantly from such arrangements.

The focus should not be on how the ‘market’ will be affected, but rather upon the complex and unacceptable situations for children, commissioning person(s), and women that may arise as a result of such arrangements. International issues concerning legal parentage and citizenship for children, for example, have recently featured in the news. There have also been instances of human trafficking of both women and children – in both developing and developed nations. Gammy’s case again highlights other significant international human rights issues raised by commercial surrogacy.

There are social, economic and racial disparities between surrogate mothers and commissioning person(s). Exploitation and commodification of women and children can and does occur. In this instance, Chanbua entered into the arrangement because her family was desperate and in debt. The taking of only the healthy child reflects a ‘market’ in which babies are the products and only the ‘best’ will do. Women in such circumstances are required to undergo an abortion, or face being left with a disabled child they may not be able to care for. The situation also reeks of discrimination against, and devaluing of, people with disabilities – again a human rights issue.

People seeking to form families should be supported, and I might add that this should be regardless of whether they are in a same-sex or heterosexual relationship – but commercial surrogacy is not the way.

Mrs Chanbua entered into the arrangement because her family was desperate and in debt. The taking of only the healthy child reflects a ‘market’ in which babies are the products and only the ‘best’ will do.

While our nation therefore rallies to support baby Gammy and his Thai family, we should also rally to ensure that women and children beyond this family are protected from practices that may lead to their exploitation and or commodification.

An international forum in the Hague is being held between 11-13 August in which more than a hundred academics, activists, and policy-makers from over 27 countries will come together, to discuss such issues.